Hryniak: Two years later – The multiple applications of ‘that summary judgment case’ from the Supreme Court of Canada
November 20, 2015 By: Jessica Fullerton Read Time: 3 minutes

Nelligan O’Brien Payne gratefully acknowledges the contribution of Suzanne Dunn, Student-at-Law to this paper.


In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times – 606 of those cases are from Ontario. This paper will explore the reach of Hryniak and, in particular, the shift in culture that it has begun to usher in; both in the context of motions for summary judgment and in civil justice system as a whole. We will also look at the use of one of the enhanced fact finding powers post Hryniak: the “mini-trial”. Shrouded somewhat in mystery since its unveiling in 2010, the mini-trial appears to offer opportunities within the “significant alternative model of adjudication” that summary judgment is intended to be in the wake of Hryniak.

Our review of these issues will be explored through case examples within the following categories:

  • The Hryniak culture shift and motions for summary judgment;
  • Hryniak and the civil justice system generally – the culture shift landslide; and
  • Application of Hryniak to mini-trials:
    • Mini-trials ordered;
    • Mini-trials contrary to the interests of justice; and
    • Mini-trials and juries – are they compatible post-Hryniak?


A). Setting the stage: The legislative changes in Ontario

Summary judgment has been a feature of the Court process in Ontario since 1985. In January 2010, the Rules of Civil Procedure were amended with a view to expanding the reach of summary judgment. In keeping with this goal, the test for summary judgment was relaxed: from “no genuine issue for trial”, the test became “no genuine issue requiring a trial.”

January 1, 2010 also marked the introduction of the enhanced powers for judges in Rules 20.04 (2.1) and (2.2) which included:

  • the ability to weigh evidence;
  • the ability to determine credibility;
  • the ability to draw reasonable inferences; and
  • the ability to hear oral evidence – the “mini-trial.”

In addition to the above, the principle of proportionality was codified in Rule 1.04 as follows:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give direction that are proportionate to the importance and complexity of the issues and to the amount involved, in the proceeding.

B). Background and the Court of Appeal’s decision in Combined Air

At around the same time as the legislative changes were being introduced, Hryniakwas being litigated. The case was one of civil fraud. The plaintiff investors, known as the “Mauldin group”, alleged that they had been defrauded by businessman, Robert Hryniak, and other defendants. Similar allegations were made against these defendants in a companion case.

In 2010, the plaintiff investors brought motions for summary judgment that were heard together. The motion record was extensive, including 28 volumes of documents. In October 2010, and using the enhanced fact finding powers, including the ability to evaluate credibility and draw inferences from the evidence, the motion judge granted summary judgment to the plaintiffs in the action against Robert Hryniak.

The matter was appealed and heard by a five judge panel of the Court of Appeal, along with three other appeals, in a single hearing known as: Combined Air Mechanical Services v Flesch. In interpreting and giving meaning to the changes to Rule 20, the Court of Appeal created the “full appreciation test” as the benchmark for determining when a trial was necessary.

The approach by the Court of Appeal has generally been regarded as cautious and as championing the merits of the conventional trial. Summary judgment was held not to be a substitute for a full trial. According to the Court of Appeal, the “full appreciation test” would generally be met in document driven cases with limited testimonial evidence. Cases with “limited contentious factual issues” were also likely suitable for summary judgment. The role of oral evidence in motions for summary judgment, as contemplated by the Court of Appeal, was to be on discrete issues and should not “convert a summary judgement motion into a trial.

Click to read the full paper written by Jessica Fullerton and articling student, Suzanne Dunn.


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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